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Duties and responsibilities of non-employees in regard to the prevention of workplace violence and harassment

Duties and responsibilities of non-employees in regard to the prevention of workplace violence and harassment

Yosie Saint-Cyr LLB, Managing Editor, HRinfodesk, published by First Reference, June 2015

As we can see from the result of a recent HRinfodesk poll, most employers (234 respondents out of 236) understand that contractors and other non-permanent workers have duties and responsibilities in regard to the prevention of workplace violence and harassment in their organization. But what does that mean?

According to Statistics Canada's report on “Criminal Victimization in the Workplace,” the 2004

General Social Survey (GSS) on victimization showed that 17% of all self‐reported incidents of

violent victimization, including sexual assault, robbery and physical assault, occurred at the

respondent's place of work. This represents over 356,000 violent workplace incidents in Canada's ten provinces. Statistics vary from province to province, with a range of 40% of violent incidents in Newfoundland and Labrador occurring at the victim's place of work, compared to 11% in Nova Scotia and 20% in Saskatchewan and Alberta. The GSS showed that certain occupations were more at risk, with 33% of all violent workplace incidents having a victim who is employed in a health care or social assistance setting, such as hospitals, nursing homes or residential care facilities; 14% employed in accommodation or food services (hotels, bars, restaurants) and 11% of victims being employed in the education sector.

Although we do not normally go to work expecting it to occur, violence and harassment can happen at any workplace. Violent and harassing incidents in the workplace interfere with productivity and have a malign influence on the working environment of employees. Whilst occurrences of most serious violence remain low, any violent/harassing incident can be distressing both for those directly involved and for those who witness it, be they staff or clients.

Every jurisdiction in Canada has provisions in their Occupational Health and Safety legislation and/or Regulations requiring employers to take the prescribed steps to prevent and protect employees against violence in the workplace. The requirements only cover violence occurring in the course of employment over which the employer has control, whether this employment takes place within or outside the workplace. Violence in the workplace includes acts between employees and acts between an employee and a non-employee.

Alberta, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan and in the federally regulated jurisdictions cover workplace violence directly in their occupational health and safety legislation or regulations.

Ontario, Saskatchewan, Manitoba and British Columbia have specific measures in their Occupational Health and Safety legislation and/or Regulations to address bullying and harassment in the workplace. The measures define bullying and harassment separately from workplace violence.

New Brunswick, Quebec, the Northwest Territories, Nunavut and Yukon offer no legal definition or specific requirements regarding “violence” or “workplace violence” in their occupational health and safety legislation or regulations. However, most employers know that general duty clauses

and human rights legislation-at either the national level or in their province or territory-protect employees from harassment based on various protected grounds, and this covers some aspects of workplace violence; but it is less clear where employers should look to understand their obligations when it comes to protecting workers (and their physical workplaces) from the full range of violent behaviour.

The OHS requirements include, among other things, having in place workplace violence and harassment policies that control identified risks of workplace violence and harassment; identifying the way immediate assistance can be summoned in the case of workplace violence and harassment; reporting of incidents or threats of workplace violence and harassment; dealing with incidents, complaints and threats of workplace violence and harassment.

Employers, supervisors and employees all have duties and responsibilities under the law. In addition, employers must educate and train employees regarding the employer's workplace violence/harassment policy and program.

So how about non-employees?

A worker may interact with non-employees in the course of employment; non-employees may include customers, suppliers, contractors, self-employed and vendors. If addition, if you are self-employed, you are treated as an employer under Occupational Health and Safety legislation and regulations. In certain situations, prime contractors, contractors and suppliers also assume some of the occupational health and safety responsibilities at a work site.

In general, these individuals and organizations must determine what their responsibilities are in relation to the health and safety of all workers affected by their activities in the workplace. They must co-operate with the employer or the prime contractor and occupational health committees in protecting the health and safety of everyone in the workplace. They must conduct their work in a way that does not endanger anyone's health and safety in the workplace. They must also provide information that could affect the health and safety of others to the employer or prime contractor that retained their services. They must take necessary precautions to ensure that activities and hazards within their control do not create a safety and health risk to employees they interact with. They must know and follow applicable Occupational Health and Safety legislation and regulations including workplace violence and harassment provisions.

A visitor is anyone who will be on a work site for a short period of time (e.g., less than a day).

As for visitors to a workplace, as soon as they enter your premises, the employer is responsible to ensure that the visitor is aware of relevant workplace safety rules and is under the supervision of a regular employee. Thus, visitors must be accompanied at all times to ensure he or she is protected from the hazards on the site and employees are also protected, including from violence and harassment. Visitors must conform to all instructions, written and oral, given to ensure their personal safety and the safety of others.

Employers may have to take measures against individuals or organizations that fall in these categories and are involved in a violent or harassing incident while in the workplace. They may need to be banned from the premises using trespass notices, law enforcement, security and notices to staff.

The real challenge will be for employers, such as health care providers and educational institutions, who cannot easily exclude/remove persons who are potentially violent because of an obligation to provide services to these individuals.

Suffice it to say, no matter the responsibilities and duties non-employees have in your workplace, general health and safety responsibilities of management, workers, contractors and visitors while at the work site or workplace should be included in an organization's health and safety policy. Clearly defined and well-communicated health and safety roles and responsibilities for all levels of the organisation will create an expectation of a standard level of performance and accountability among employees, contractors and visitors. All levels must be aware of their individual roles and responsibilities under both legislated and company standards.

Ask yourself: is there a process in place that addresses non-employee and visitor health and safety while on site or in the workplace? If you answer no, think of implementing one. For example, have visitors sign in and provide them with an escort while they are on site; or visitors to the work site should receive a work site orientation to make them aware of the hazards and what to do if there is an emergency.